by Stephanie Pittman, PHR
One of the first problems employers encounter in determining whether or not to grant employee leave is determining the nature of the leave and the applicable statute or company leave policy.
Is the leave being requested for a condition the employee is experiencing or is it a condition experienced by a spouse or family member?
If the leave requested is for a medical condition experienced by anyone other than the employee, the ADA would not apply. Leave related to an illness of a family member is only available under the FMLA. If the leave requested is for the employee’s own serious health condition, the ADA and/or the FMLA may apply.
Does the employee meet the eligibility requirements for protection under the FMLA and/ or the ADA?
An employee qualifies for coverage under the FMLA if he/she has been employed for at least one year and has worked at least 1,250 hours during that year. FMLA protection applies when the covered employee is unable to work because of his/her own or a family member’s serious health condition or when the employee gives birth or adopts a child. A serious health condition is defined as illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment by a health care provider. The condition may be temporary under FMLA but must require absence from work for at least three days and a continuation of treatment. A cold or flu not requiring ongoing medical treatment would not qualify a person for leave under FMLA. Typically an illness requiring hospitalization or outpatient surgery will qualify an individual for leave under FMLA.
If leave is being requested for the employee’s own serious health condition, assessment of the nature of the condition will determine which benefits are applicable and most appropriate. An employee is qualified for leave under the ADA only if the individual currently has a disability defined as a physical or medical impairment that substantially limits a major life activity. Temporary, non-chronic impairments typically do not qualify as disabilities. Examples of temporary impairments include: broken bones, pregnancy, flu, appendicitis, and non-chronic infections. The individual with a temporary impairment would not qualify for leave under ADA but may qualify for FMLA leave.
A major difference between eligibility requirement s under these statutes is the extent of the impairment. The FMLA only requires that there is a serious health condition that prevents the employee from being able to perform the functions of their current job on a temporary basis. The ADA requires that the employee must have a current, chronic medical condition that substantially limits one or more major life activities on an ongoing basis. Major life activities are defined as but not limited to: walking, hearing, caring for oneself and working.
If the employee is eligible for benefits under these statutes, are we required to grant leave?
The FMLA requires a maximum of 12 weeks of leave for a qualifying employee that has a serious health condition that makes the person unable to perform the job. If an employee qualifies for leave, they are entitled to it. There is no undue hardship provision under FMLA.
Under the ADA, unpaid leave that does not cause undue hardship may be an appropriate reasonable accommodation. An undue hardship is defined as one that would be too expensive or too disruptive to the organization’s operation. There is no maximum time period for leave required by this law.
Is our organization required to reinstate a worker returning from leave to their former position?
Reinstatement under ADA
The ADA requires the employer to reinstate the employee to his or her former position unless the employer can show that it would create an undue hardship to keep the position open. If an undue hardship would exist in reinstating the employee to the original position, the employer must consider reassignment opportunities on a company wide basis. The employer is required to reassign the employee to a vacant position provided that the individual meets the minimum qualifications. The returning employee does not need to be the best candidate for the job in order to require a reassignment.
The FMLA requires that an employee be reinstated to his/her original position or an equivalent position. If the employee can no longer perform the essential duties of the job, he/she may be terminated under FMLA.
You are covered by ADA if…Employer coverage: The ADA covers private employers with 15 or more employees and all public employers. There are no geographic requirements for coverage.
You are covered by FMLA if…Employer coverage: The FMLA covers private employers with 50 or more employees and all public employers. The FMLA applies when at least 50 of the employer’s employees are within 75 miles of the requesting employees worksite.
What are the guidelines for requiring an employee to submit medical certification of the presenting illness or injury prior to granting a leave of absence?
While the ADA prohibits employer inquiry into the severity of a disability and forbids medical examinations unless the examination is job related and consistent with business necessity, the FMLA allows employers to require employees to provide written certification from a health care provider in order to verify the need for leave. Under the FMLA an employee may be required to provide the employer with information regarding the nature and severity of the condition.
In order to avoid violation of ADA guidelines, employers should follow the following procedures:
- Requests for written certifications for FMLA purposes should be narrowly tailored asking only for the information necessary to verify leave requests. Employers may ask the physician to certify that leave is necessary, the expected length and timing of leave without disclosing information regarding the medical condition or any long term prognosis.
- Employers should protect the confidentiality of requests for leave. Restrict information regarding employee leave to supervisors and managers. Leave requests should not be discussed with other employees.
What happens if the employee qualifies for leave under both statutes?
A medical condition may qualify an employee for coverage under both the ADA and FMLA if the condition is a disability under ADA and a serious health condition under the FMLA. If a person is qualified for leave under both the ADA and the FMLA, the employer must analyze the situation and provide the leave under the statute that provides the greatest benefit to the employee. An employee who qualifies for benefits under both the FMLA and ADA may request an extension of FMLA leave as a reasonable accommodation. The employer who has provided the employee with 12 weeks of leave under FMLA may find it difficult to prove that an extension of leave would create an undue hardship.
An employee who has cancer and applies for leave under FMLA to receive treatment may also request additional time off as an accommodation under ADA. The employer would be required to comply with this request only if it did not present an undue hardship. However, an employee who requests time off for the removal of an appendix would not qualify for coverage under ADA because the condition is not one that substantially limits a major life activity. A person having a record of an impairment qualified as a disability may be entitled to coverage under the ADA but would not necessarily be entitled to FMLA coverage. If there is no current serious health condition that prevents the employee from working, the employee is not entitled to leave under FMLA. An employee who has a relationship with a disabled individual may be eligible for leave under FMLA but not ADA.
Want to Know More?
- Ohio Rehabilitation Services Commission Sourcebook on the Americans with Disabilities Act, (1997) Compiled and edited by Dave Cameron and Trudy Sharp.
- The EEOC website
- Enforceable Guidance: Reasonable Accommodation and Undue Hardship under the ADA. (10/21/99) by the EEOC.
- Equal Employment Opportunity Commission , 1-800-669-4000
- Job Accommodation Network, 1-800-ADA-WORK, janweb.icdi.wvu.edu.
- National Organization on Disability , 1-202-293-5960
- In Ohio
- 1-800-ADA-OHIO provides resource materials, telephone technical assistance and information on educational workshops.
- Ohio Rehabilitation Services Commission Employer Services provides information and assistance in hiring qualified people with disabilities. Contact manager Ben Green at 1-800- 282-4536.